Posted on 02/16/2019 5:45:24 AM PST by LS
My source on all things courts and legal, Zen Master, has weighed in with some excellent information on the path ahead for the Declaration of Emergency.
1. For a case to be heard, it must meet at least these three conditions: standing, ripeness, and aggrieved party.
First, standing: the DoE only affects four states: TX, NM, AZ, and CA.
Only a party in one of those four can bring a suit in the Ninth (CA/AZ), Tenth (NM), or Fifth (TX) Circuit Courts. But even before you can do that, you must be an aggrieved party, meaning you must show direct immediate harm from what is happening (i.e., building the wall). Watch how this plays out in a moment.
Now, it's frequently argued here that a "friendly" party can bring a case immediately in a "friendly" venue (such as the Fifth, which is mostly GOP/conservative but not unanimous).
No. A court would view this as a type of fraud, since the two parties are considered "friendly" and would rule it an abuse of the court. It would be tossed. I don't know, but there might even be legal penalties for bringing such a suit.
Second, this is different from the Travel Ban, which was national and enabled a Hawaiian judge to put a stay on it. Again, this is region and state specific, meaning it will only affect the Ninth, Tenth, and Fifth---but not until the wall starts going up in those states.
Third, no challenge can be brought until a case is "ripe." In OH, Gov. DeWine said he will sight the "Heartbeat Bill," which PP will challenge. But he hasn't signed it yet, so there is no challenge yet.
No "wall" challenge can be made until the case is ripe, meaning until Trump ACTUALLY SPENDS DoE MONEY TO BUILD SOME OF THE WALL.
2. That brings us to the emergency declaration. Congress has already authorized, and Trump signed (which many of you did not want him to sign) a bill with $1.375b to start building the wall.
Trump has also invoked two statutes, 31 U.S.C. section 9705 and 10 U.S.C. section 284 to spend about $3.1b. These statutes don't require an emergency declaration.
There is a third statute, 10 U.S.C. section 2808 with $3.6b which does require an emergency declaration.
Here's the genius of how Trump is doing this: the money will be spent sequentially, with the $3.6b designated under 10 U.S.C. section 2808 (the national emergency money, if you will) spent last.
Trump will spend about $4.7b before he ever gets to the DoE money---and that's the only point at which that DoE can be challenged.
3. Now, there WILL be a Congressional challenge to the authority to do issue this declaration in DC almost immediately, and that (says Zen Master) will be struck down both on standing and ripeness grounds.
4. Go back to standing: the case cannot come up in the Ninth or Tenth Circuses until wall building WITH DoE $$ actually starts there.
Finally, precisely because Congress has just authorized $1.75b for the wall---regardless of the qualifiers---it cannot be argued that Trump's wall is something different (i.e, somehow unconstitutional). In other words, by passing the bill---and by Trump signing it---Congress just MADE IT 100% LEGAL.
Very encouraging. Thanks.
L
Let's just say the Roberts has been inconsistent at best. Which has caused trouble in the past, and could throw a monkey wrench into all this.
Should be an interesting 2 years for sure
So, with all that being true, we will hear lots of noise about law suits. We will hear little, perhaps nothing, about the results of the lawsuits.
So, money is not totally fungible. It depends on which pot it is stored in
Sounds good. Thanks for sharing!
It is also 100 percent true that the Dems can do whatever they please with no regard for law or standards or precedent or anything else that applies to Republicans, and get clean away with it.
So I won’t be surprised if they bring the case to a friendly venue before they should. Nobody ever stops them. Ever.
Correct, but one more point: Trump HAD TO SIGN THE BILL.
If he didn’t sign, a court “could” say he did not take advantage of every legal/constitutional alternative to a Declaration of Emergency.
That’s why the sequence in which he did this was brilliant. Now his lawyers can say, “we went through Congress, we jumped through all the hoops, but it still didn’t even begin to address the problem.”
If he had vetoed, as some here wanted him to do, that would leave a court an out.
Bump.
and aggrieved party
What kind of bizarro argument could possibly prove aggrieved?
The rest of the money would go towards the real work.
nazi and chuckles have nothing to say about controlling the remaing 8B.
3D Chess Master Trump.
Thanks, Larry, this is great analysis, salient, and realistic...
I’m gonna turn on the sarcasm for the many self-agrieved Freepers who may have to put down their razorblades and childhood copies of, “Chicken Little”.
I’m not sure Anne Coulter will read this as it won’t be conducive to selling her repetitive books.
IMO, the most glaring aspect to any challenge to the President’s statutory authority to declare a national emergency is summed up in another one of your tweets:
” Zen Master thinks that suit will fail because a judge would ask why they (the members) don’t rescind the statutory authority granted to the president “
Bongino, I’m told, said the same thing on Fox last night, though like me, he’s no lawyer.
Ok, good question. Say they were building the wall on your land and they didn’t offer you a just price?
Or, not likely, but say you had a cattle trail to some watering hole and they blocked off your watering hole?
Do you know, or does the Zen guy know what exactly has happened with Justice Roberts?
Let’s just say the Roberts has been inconsistent at best. Which has caused trouble in the past, and could throw a monkey wrench into all this.
...
Good time to ask...I believe he is 100% blackmailed under Obama’s /Jarret/Soros control via his illegally adopted kids plus his bisexuality. I’m sitting at my table with my sign that says, “change my mind”
Correct, but one more point: Trump HAD TO SIGN THE BILL.
If he didn’t sign, a court “could” say he did not take advantage of every legal/constitutional alternative to a Declaration of Emergency.
...
Superb point!!!
and aggrieved party
What kind of bizarro argument could possibly prove aggrieved?
...
Mark my words...They are so arrogant they’ll claim this land is still theirs!!!
I’m not kidding.
Need conservative leadership heading all departments who are not hesitant to discreetly hack away the fat.
So, with all that being true, we will hear lots of noise about law suits. We will hear little, perhaps nothing, about the results of the lawsuits.
So, money is not totally fungible. Fungibility depends on which pot it is stored in
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